Survivorship Deed FAQ

Definitions   (Back to Top)

Q. What is Title?

A.
Title is the sum of all elements that provide the legal right to control and to dispose of property. It can also refer to a legal document, such as a deed, that serves as evidence of ownership in the property.

Q. What is a survivorship deed?

A.
A survivorship deed creates a joint tenancy between two or more grantees and it facilitates the transfer of property rights from the deceased grantee to the surviving grantee(s). Upon the death of one of the grantees, his or her interest in the property will pass to the surviving grantee(s) automatically and bypass the need for probate. The last surviving grantee of the deed gets complete ownership of the property and upon the death of the last survivor, the property will be subject to probate. This type of deed is often used by couples who want to ensure their property will go directly to the surviving partner upon the death of one partner.

Q. What does the term "Fee Simple" mean?

A.
Fee simple refers to the most extensive interest that a person can have in a parcel of land. The holder of a fee simple has complete ownership with unconditional powers of disposition during the owner's life, and upon death the property descends to the owner's designated heirs.

Q. What is sole ownership?

A.
Sole ownership is exclusive ownership. An ownership so complete that no other person has any interest in the property.

Q. What is joint tenancy?

A.
Joint tenancy is an undivided interest in property, taken by two or more joint tenants. The interest must be equal, accruing under the same conveyance, and beginning at the same time. Upon the death of a joint tenant, the interest passes to the surviving joint tenants, rather than the heirs of the deceased. This type of ownership is commonly used by couples who want the surviving partner to receive ownership of the deceasedís share of the property.

However, some states have statutory provisions which deem joint tenancies to be severed upon the death of one joint tenant, unless the joint owners have agreement in writing stating otherwise. Other states have abolished the recognition of joint tenancy all together and will treat all instances of joint tenancy as tenancy in common. It is important to understand how a specific stateís statutory provisions will affect the ownership rights of both joint tenants and tenants in common and then plan your affairs accordingly.

Q. What is right of survivorship?

A.
Right of survivorship is the right of a survivor to receive the property of the deceased. In general, it is the difference between joint tenancy and tenancy in common. Note that some states do not recognize joint tenancy or do not deem tenancies to be severed upon the death of an owner.

Q. What is tenancy in common?

A.
An undivided ownership in real estate by two or more persons. The interest need not be equal, and in the event of the death of one of the owners, there is no right of survivorship in that owner's interest. Instead, the deceasedís interest will pass to his or her heirs.

Q. What is tenancy by the entirety?

A.
A form of ownership by husband and wife whereby each owns the entire property. Neither spouse can deal the property without the consent of the other. One main benefit is that the creditors of one spouse cannot enforce against the property held in tenancy by entirety unless the non-debtor spouse dies first. In the event of death of one spouse, the survivor owns the entire property without the need for probate. However, it will be difficult to transfer the property if one spouse disappears or becomes incompetent since the other spouse cannot sever tenancy by entirety unilaterally.

Q. What is Survivorship Community Property?

A.
This is a form of joint tenancy available only to spouses in certain states. Each spouse owns 50% of the property as well as any debts that each spouse may have incurred. Upon the death of one spouse, the survivor will receive the deceasedís interest without probate. However, community property provides less protection to individuals than tenancy by the entirety since debtors can enforce against property because debt is also considered community property.

Q. How does joint tenancy differ from tenancy in common?

A.
Joint tenancy is a form of co-ownership where the surviving joint tenant immediately acquires a fee simple interest in the property upon the death of the other joint tenant. Tenancy in common is a different form of co-ownership, where the survivor does not acquire the deceased tenant's interest, but instead the deceased's interest passes according to his or her estate. A tenancy in common is presumed to be created by a deed transferring property to 2 or more people, who are not husband and wife. The best way to achieve joint tenancy is through the use of a Survivorship Deed.

Q. Who should I list as the Grantor?

A.
The Grantor is the person who bestows or gives the possession of something. In the case of a transfer of property by deed, the Grantor is the person who gives interest that he or she holds in the property to someone else. Generally, the Grantor section should include everyone whose name is currently on the title of the property that is being transferred.

Q. Who should I list as the Grantee?

A.
The Grantee is the person who receives the grant. In the case of a transfer of property by deed, the Grantee is the person who receives interest of the property from the Grantor and should include everyone, whose name will be on the title of the property once it has been transferred.

Be aware that a person can be both a Grantor and a Grantee on a deed. For example, if John Smith currently holds title to a home and he wants to convey half interest of that family property to his wife, Mary Smith, John Smith would be listed as the Grantor, and John Smith and Mary Smith would be listed as the Grantee.

Q. What is a notary public?

A.
A Notary Public is a state-appointed official who is authorized to authenticate certain legal documents, such as declarations, acknowledgments, deeds, mortgages, and other contracts. Most real estate deeds are notarized by attorneys.

Q. What is the consideration?

A.
The consideration entered on a deed document should be the actual value paid by the Grantee to the Grantor in monetary terms. If no consideration is being provided, such as in the case of a gift, then 10.00 can be entered as the standard consideration.

Q. What is the County Recorder's Office?

A.
This office is referred to by different names in different states, such as County Clerk's Office, Register of Deeds, or Land Registry Office. It is where quitclaim deeds, warranty deeds, and survivorship deeds are registered.

Property Information   (Back to Top)

Q. Where can I obtain the legal description of my property?

A.
You should be able to obtain the complete legal description of your property from the County Recorder's Office by providing your municipal address or tax parcel number.

Q. What is the tax parcel number or parcel identification and how do I find out what the specific number is for my property?

A.
This number is a 10-12 digit number that identifies ownership and assessed values of property for taxation purposes. The number can be obtained from your Tax Statement, Revaluation Notice, or Personal Property Listing Form.

Q. What is the Tax Map Key Number and how can I find the Tax Map Key Number for my Hawaiian property?

A.
The state of Hawaii uses Tax Map Key Numbers to identify the location of Hawaiian property. It is a five digit number where the first number represents which island the land is on, the second shows the zone of the island, the third indicates the section within a zone, the fourth number is the parcel, and the fifth is the plat where the land is located. You can find your Tax Map Key Number on your property assessment notice, or by contacting the Real Property Assessment Division of your county.

Signing and Recording   (Back to Top)

Q. Why is there a large margin at the top of deed documents?

A.
The County Recorder who will file the document requires a 2-3 inch margin at the top of the document so that they can affix a stamp, filing number or some other form of information to help identify and record the deed. Do not write in this space.

Q. Can I get my deed notarized in a different state than where the land is located?

A.
Most states recognize notarization of land transfers by officials from other states, but you should contact the County Clerk's Office where the land is located to be sure that they will allow transfers of property located within their borders to be notarized in another state. Our deeds allow for inter-state notarization by enabling you to select in which state you will have the deed notarized, regardless of the location of the property.

Q. Does the Grantee need to sign the deed?

A.
No, most states do not require that the Grantee sign a survivorship deed. However, some counties do require that the deed be signed by the Grantee in addition to the Grantor.

Q. After the deed has been recorded at the County Recorder's Office, to whom should it be sent to?

A.
Usually, the deed would be sent to the Grantee after it has been recorded. However, any person or corporation can be designated as the recipient of the recorded deed, such as the Grantor, a Title Insurance company, or another interested party.

Q. Does a survivorship deed have to be notarized in order to be valid?

A.
Yes, after the Grantor signs the deed, they must get it signed and stamped by a notary public to verify that the Grantor's signature is authentic before it can be filed with the County Clerk's Office.

Q. What do I do with a survivorship deed after it has been signed by the Grantor and a Notary Public?

A.
After a deed is signed and notarized, it should be filed at the land records office in the county where the property is located. This office is referred to by different names in different states, but is usually called the County Clerk's Office, County Recorder's Office, Register of Deeds, or Land Registry Office.

Q. Do I need to have witnesses when I sign a deed?

A.
Currently, only Arkansas, Georgia, Michigan, Ohio, South Carolina, and Vermont require that witnesses sign deeds in addition to a notary public in order for deeds to be valid. However, in some states, specific counties require that deeds be witnessed. You should check with your local county recorder's office to determine if witnesses are required.